EEOC

Filing 183

MEMORANDUM AND ORDER overruling 178 Order on Appeal to Magistrate Judge Order. The Magistrate Judge's order 174 is affirmed. Ordered by Chief Judge Laurie Smith Camp. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
ABDI MOHAMED, et al.,
Plaintiff/Intervenors,
FARHAN ABDI, et al.,
Plaintiff/Intervenors,
v.
JBS USA, LLC f/k/a JBS SWIFT & CO.,
a/k/a SWIFT BEEF COMPANY,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

CASE NO. 8:10CV318

MEMORANDUM
AND ORDER

This matter is before the Court on the Statement of Objections (Filing No. 178) filed
by the Defendant, JBS USA, LLC, to the order (Filing No. 174) entered by Magistrate
Judge F.A. Gossett granting the Plaintiff's and Plaintiff/Intervenors' motion for a protective
order barring the Defendant from deposing Ayan Aden, Mohamud Einab, and Hodan
Ibrahim.
FACTUAL BACKGROUND
The Plaintiff Equal Employment Opportunity Commission (“EEOC”) alleged in its
Complaint that JBS engaged in a pattern or practice of discrimination against its Somali
Muslim employees at its Grand Island, Nebraska facility. In its Amended Complaint, the

EEOC identified 153 individuals for whom it seeks relief.

Two groups of allegedly

aggrieved employees filed Complaints in intervention.1
The EEOC sought to bifurcate the proceedings. However the parties entered into
a bifurcation agreement (“agreement”) that Judge Gossett adopted and approved. The
agreement divided the discovery phase and trial into two phases: Phase I addresses the
pattern or practice claims; and Phase II relates to individual claims and relief. The
agreement stated the following, in pertinent part, with respect to depositions:
(1)
Defendant may depose up to 10 “aggrieved employees,” as defined
in the EEOC's First Amended Complaint and who are Intervenors in this suit,
selected by Plaintiffs as those upon whom they will rely to prove their pattern
or practice claims. Defendant may depose up to 10 “aggrieved employees,”
as defined in the EEOC's First Amended Complaint and who are Intervenors
in this suit, selected by Defendant. Defendant may depose any combination
of up to 10 of the following additional non-expert witnesses, including
non-aggrieved Somali Muslim employees who worked at the Grand Island,
Nebraska facility during the relevant time period, non-employee witnesses,
Union and co-worker witnesses, management (corporate and Grand Island)
witnesses, and/or 30(b)(6) witnesses.
....
(3)
Additional depositions may be taken upon written consent of all
parties or leave of Court upon a showing of good cause. Any party may seek
written consent or leave of court to depose affiants of statements submitted
in support of or opposition to a dispositive motion. No party waives the right
to object to depositions or discovery.
(Filing No. 76-1, at 3 (emphasis added).)
JBS served deposition notices for three individuals: Ayan Adan; Mohamud Einab;
and Hodan Ibrahim. All three persons are “aggrieved employees” as defined in the

1

The EEOC and both groups of Plaintiff/Intervenors are hereinafter referred to
collectively as “Plaintiffs.”
2

Amended Complaint, and the EEOC seeks relief on their behalf. However, they have not
intervened in this case.
DISCUSSION
Under 28 U.S.C. § 636(b)(1)(A), the Court has reviewed the order from which this
appeal has been taken. In an appeal from a magistrate judge's order on a pretrial matter
contemplated by 28 U.S.C. § 636(b)(1)(A), a district court may set aside any part of the
magistrate judge's order shown to be clearly erroneous or contrary to law. 28 U.S.C. §
636(b)(1)(A).
Judge Gossett concluded that the agreement “does not contemplate taking the
depositions of these individuals during Phase I of the litigation and that Defendant has not
shown good cause to do so.” (Filing No. 174, at 3.) Judge Gossett reasoned that the
intent of the agreement in using the term “co-workers” was not to include aggrieved
individuals with a stake in this litigation. Rather, Judge Gossett found that the word “coworkers” refers to “third-party individuals who may have information bearing on whether
Defendant engaged in a pattern or practice of discrimination against Somali Muslim
employees, not aggrieved employees who themselves were allegedly discriminated
against.” (Id.) Additionally, Judge Gossett stated that JBS had not shown good cause to
depose the three individuals at this stage of the litigation. Judge Gossett noted that while
the deposition testimony would be relevant, JBS agreed to limit the scope of discovery in
Phase I to aggrieved employees who have intervened. Finally, Judge Gossett noted that
JBS may depose the three individuals during Phase II of this litigation.

3

Language of the Bifurcation Agreement
In objecting to Judge Gossett's order, JBS argues that Judge Gossett misinterpreted
the bifurcation agreement and the discovery should be allowed under Federal Rule of Civil
Procedure 26(b)(1), which broadly allows for discovery of nonprivileged, relevant matters.
In seeking to preclude JBS from deposing the three individuals, Plaintiffs argue that JBS
is precluded from deposing them under the plain language of the agreement. Plaintiffs
reason that the three individuals have not intervened, and the agreement states that JBS
may depose up to 10 “aggrieved employees” who are intervenors.
The Court agrees with Judge Gossett that “[t]he fact that Union and co-worker
witnesses are grouped together in the same sentence indicates the parties' intention that
co-worker witnesses, like Union witnesses, are to be third-party individuals who may have
information bearing on whether Defendant engaged in a pattern or practice of
discrimination against Somali Muslim employees, not aggrieved employees who
themselves were allegedly discriminated against.”

(Id.)

This interpretation of the

agreement is well-reasoned and is not clearly erroneous. JBS's interpretation makes little,
if any, sense within the context of the entire section relating to depositions.
Good Cause
In its Statement of Objections, JBS argues that good cause for allowing the
depositions exists because, if the depositions are not allowed, it will be prevented from
deposing the entire group of non-intervening, aggrieved co-workers. However, JBS ignores
the fact that it may depose such individuals during Phase II of the litigation.

4

Protective Order
JBS argues that grounds under Federal Rule of Civil Procedure 26(c)(1) do not
support the entry of a protective order under the circumstances presented. Rule 26(c)(1)
allows a court to enter a protective order for good cause “to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense.” The rule lists eight
nonexhaustive types of protective orders that may be entered. Fed. R. Civ. P. 26(c)(1)(A)(H). In interpreting the rule, “[i]t is impossible to set out in a rule all of the circumstances
that may require limitations on discovery,” and “[t]he rules . . . leave it to the enlightened
discretion of the district court to decide what restrictions might be necessary in a particular
case.” 8A CHARLES ALAN W RIGHT , ARTHUR R. MILLER & RICHARD L. MARCUS, FEDERAL
PRACTICE AND PROCEDURE § 2036, at 163 (3d ed. 2010). Under the circumstances, Judge
Gossett acted within his discretion in granting the motion for a protective order.
CONCLUSION
For the reasons discussed, the Court concludes that the Magistrate Judge's order
is not clearly erroneous or contrary to law.
IT IS ORDERED:
1.

The Defendant's Statement of Objections to the Magistrate Judge’s order

(Filing No. 178) are overruled; and
2.

The Magistrate Judge's order (Filing No. 174) is affirmed.

DATED this 4th day of January, 2012.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
5